ILNews

Supreme Court aligns with trial court in dog-attack case

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court has affirmed a trial court judge’s finding that the city of Evansville and its animal control division are not liable in a dog attack that seriously injured a boy.

Siding with Vanderburgh Circuit Judge Carl A. Heldt, the Supreme Court found that the Indiana Court of Appeals was in error when it reversed Judge Heldt’s decision.

In the case of Misty D. Davis v. Animal Control - City of Evansville, et al., No. 82S01-1102-CV-77, Misty Davis filed a complaint against the city and its animal control division in 2007, two years after a Rottweiler attacked her six-year-old son. Davis claimed that animal control “was well aware of this dog’s violent propensities based upon numerous prior attacks by this dog,” yet failed to protect her son from the animal.

The trial court found that the city defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act, which provides immunity to governmental entities for any loss resulting from the failure to enforce a law. Davis appealed that decision, claiming law enforcement immunity did not apply because the complaint is not based on the defendants’ failure to enforce the law but rather on their failure to follow their own procedures for determining whether an animal is dangerous as set forth in the Evansville Animal Control Ordinance. The Court of Appeals majority agreed. Judge James Kirsch dissented.

In reversing the trial court’s decision, the COA relied on the Supreme Court decision in Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994), limited on other grounds, Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind. 1999). In that case, the Supreme Court considered whether the failure of an emergency dispatcher to send an ambulance to a house fire despite a department policy stating that medics would be dispatched to all fire calls where someone was thought to be inside fell within the parameters of law enforcement immunity.

In Mullin, the Supreme Court concluded that the scope of  enforcement is limited to activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof. Because the dispatcher in Mullin was not doing any of those things, the claim was not barred by the law enforcement provision.

“This was not the correct way to apply Mullin,” the Supreme Court stated of the COA reversal in Davis. “Mullin did not hold that there was no law enforcement immunity because city employees did not follow procedures; it held that there was no law enforcement immunity because in responding to a fire emergency, the city was not engaged in law enforcement.”

The Supreme Court stated that a dog with the same name had attacked someone before Davis’ son was attacked, but the owner’s address and name were different in both cases; therefore, it’s not certain whether the dog previously picked up and held temporarily by the animal control division is the same one that attacked Davis’ son.

Holding that the plaintiff's claim does constitute an allegation that the city defendants failed to enforce the law, the Supreme Court ruled Davis is not entitled to collect damages from the defendants.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

ADVERTISEMENT